Monday, August 22, 2005

Yoga and Copyright

The last posting, on choreography, mainly dealt with the lack of utilization of copyright by choreographers and others such as fine artists. One reason for choreographers' attitude toward copyright is that protection was very late in coming, and until 1978 quite limited. Of necessity, if not by design, alternatives had to be found.

Although choreography is of very ancient origin, the first registration was not until 1952. Even in 1952, there was not a separate enumeration in the statute for choreography (as there is now). Instead, choreography had to qualify as a species of dramatic composition in Section 5(d) of the 1909 Act; that meant the choreography had to tell a story. This requirement excluded a lot of what was then called "modern" dance. Fixation was also problematic and expensive since videotaping was not an option. (Tapes weren't an option for musical compositions either). The 1976 Act opened things up both by expanding choreography to include abstract choreography (by which I mean choreography that doesn't tell an overt story like Cinderella), and by permitting more flexible fixation, including videotaping. The same holds true for pantomime (protected for the first time in the 1976 Act). The Office has a fact letter on both.

But what about other scripted routines involving motion, like yoga? Until April 1, 2005, I would never have thought a court would entertain the possibility that one could acquire exclusive rights over the performance of yoga exercises. Leaving aside serious questions of origination, yoga routines are intended to bring about physical, mental, or emotional results and are, therefore, excluded by Section 102(b). Nor does a book about them convey any rights in the routines; that's been the law since Baker v. Selden, 101 U.S. 99 (1879), which rejected a claim by the author of a treatise on bookkeeping that a registration for the book gave him exclusive rights over the system of bookkeeping explained therein. Baker v. Selden is one of the foundations for Section 102(b).

So if everything is so clear, what happened? Bollywood met Hollywood and were married by ignorance, a lethal combination. Bikram Choudhury, a Calcutta native transplanted to LaLa Land, became a yoga teacher to the stars, through his Bikram "hot" yoga style, consisting of 26 yoga positions (asanas), and two breathing exercises, performed at a room temperature of about 105 degrees. We will assume arguendo he was the first to select these particular 26 positions. Importantly, he was quite insistent that they be performed strictly in order to achieve advertised physical and emotional benefits. Whether they did or not is irrelevant to me.

A book, "Bikram's Beginning Yoga Class" was written, and perhaps published before 1978, although that's unclear, at least to me, because the literary work registration (TX 179-160) states it was created in 1978 and first published on January 1, 1979 (most unlikely); the application was submitted on January 17, 1979. The claim of authorship was for "entire text."

Sometime in this new century, Bikram concluded, somehow, that he not only had a copyright in his selection of the 26 positions, but that this selection gave him the exclusive right to stop others from performing them in that order. That's baloney, as Baker v. Selden shows. And his registration was, as in Baker, on a literary work form and for "text," not choreography or any form of performing arts work (PA). That didn't stop him though from suing and threatening to sue, and making what were, in my opinion wildly extravagant and erroneous claims about the extent of this copyright.

On October 24, 2002, he filed a supplementary registration to the 1979 one, TX 5-624-003, listing amplified information of "compilation of exercises." There was correspondence over this that I am dying to see and will as soon as possible. If relevant, I'll revise this posting. But, no matter for right now; the supplemental registration was also for a literary work (it amplified a textual work, after all), and was a compilation claim. It still was not a choreography claim. Yet, Bikram asserted in litigation that "the teaching or offering of the sequence" constituted infringement. That is, as I said, baloney.

The claim was made in a declaratory judgment action brought by the Open Source Yoga Unity, a non-profit group. Their website has copies of many of the relevant legal documents. The case has now been settled, but not after an April 1, 2005 opinion by Judge Phyllis Hamilton of the Central District of California, denying Open Source's motion for summary judgment. A decision that Bikram had a copyright in a pictorial compilation of 26 exercises or in narration about them would be uncontroversial, no more so than a compilation of someone's choices of the best Indian restaurants in New York City. But what is controversial, indeed, outrageously wrong, was Judge Hamilton's conclusion that "should Choudhury establish at trial that his copyright in the Bikram yoga style is valid, under Section 106(4) he retains the exclusive right to authorize the public performance of his sequence."

Not true. Section 102(b) dictates otherwise, as does the very limited scope of the compilation. The only thing hot about Bikram's claim is the air in stating it.

14 comments:

Eric Goldman said...

I agree with your post generally, but you might want to expand this statement: "yoga routines are intended to bring about physical, mental, or emotional results and are, therefore, excluded by Section 102(b)." I don't think it's as simple as that. Eric.

William Patry said...

In Bikram's case, here are the specific claims that appeared on his website:

"Nothing about Bikram's Beginning Yoga Class is haphazard. It is a twenty-six asana series designed to scientifically warm and stretch muscles, ligaments and tendons in the order in which they should be stretched ... Bikram Yoga's twenty-six posture exercises systematically move fresh, oxygenated blood to one hundred percent of your body, to each organ and fiber, restoring all systems to healthy working order, just as Nature intended. Proper weight, muscle tone, vibrant good health, and a sense of well-being will automatically follow."

Anonymous said...

This and the choreography posts are very interesting, and I'm enjoying reading the back-and-forth. Thanks also for the references to the two law review articles in the choreography post.

However, I am not sure that I agree with part of your premise, which seems to be that dance choreography is largely unregistered, and the community is self-regulating. In fact, choreographers have been relying on formal copyright registrations for years. Michel Fokine, for example, published and registered a monograph in 1925 that laid out in several cleverly interrelated ways the sequence and manner of steps to his iconic "Dying Swan" dance. (The steps were laid out in numbered photographs; the numbers were tied both to measures of the music and to mapped locations on a bird's-eye view of the stage; plus he included step-by-step commentary describing how the work was to be performed as well as the scenery, lighting, costume, musical instruments (violincello and harp), and even curtain rising and falling that were to be used when performing the work. See "Choreographic Compositions by Michel Fokine: The Dying Swan," published 1925 by J. Fischer & Brother, available from the New York Public Library for the Performing Arts) His estate relies on that publication today to secure royalties for performances of the work.

In 2003, for example, the Ballet Nacional de Cuba was prevented from performing "Les Sylphedes" in New York because the Fokine Estate had given the American Ballet Theater an exclusive license to perform the work in the New York area through September 2005. See http://query.nytimes.com/gst/abstract.html?res=F70912FC3C5B0C738DDDA90994DB404482

George Balanchine is another example of a choreographer who was careful to adhere to the formalities of registration. At his death he distributed those rights to a number of beneficiaries, many of whom came together to form the Balanchine Trust, a not-for-profit entity that controls the licensing and performance of those works. It is the Trust that evaluates requests to perform Balanchine works; measures the 'ability' of the company to perform the work; and, particularly where the work is being performed for the first time, dispatches a carefully selected 'repetiteur' to teach the dance to the company and oversee its performance. See www.balanchine.org. It is the registered copyrights, not tradition or custom or practice, that is the foundation of that system.

And Christopher Wheeldon, a currently-popular choreographer, has registered his works, so the practice continues today.

That said, there are no doubt many works that do go unregistered. I would argue that this is in large part because the possibility for downstream remuneration is so slight. Most dance companies exist hand-to-mouth, and choreography is, with very few exceptions, a labor of love and not one motivated by profit. The incentives to register are slight, even if the burden is minimal. Does that make much of dance choreography "open source" works?

Tom said...

It sounds like I've wasted my life not practicing Bikram yoga.

I am also reminded of William Butler Yeats quote "How can we know the dancer from the dance?"

William Patry said...

Here are two law review articles on the Bikram case, both of which provide a lot more detail than is possible on the blog. Katherine Machan, "Bending Over Backwards for Copyright Protection: Bikram Yoga and the Quest for Federal Copyright Protection of an Asana Sequence," 12 UCLA Ent. L. Rev. 29 (2004) and Jordan Susman, Note, "Your Karma Ran Over My Dogma: Buikram Yoga and the (Im)possibilities of Copyrighting Yoga," 25 Loyola L.A. Ent. L. Rev. 245 (2004/2005). I may do a blog tomorrow on sports plays to finish off the general thrust of these two blogs.

Anonymous said...

Thanks for your wonderful post about this case. I'm an IP professor (and yoga enjoyer) and had wondered why the Baker v. Selden point was not more forcefully argued to the district court (and would it be, after the denial of SJ). I never got a reply from the attorneys.

I agree with you 100% that Bikram's own admission provides evidence that his yoga is a "system" within the Baker v. Selden sense.

To me, the next baffling question: why did Open Source Yoga settle the case? Surely, whatever settlement obtained could not have immunized all of the yoga practicing world from Bikram's lawsuits in the future. What kind of Open Source agrees to a settlement the terms of which are not disclosed??

William Patry said...

I too am baffled by the settlement, especially since Bikram has claimed victory. I am eager to get the correspondence from the Copyright Office and will post it when I do.

Anonymous said...

Hi folks. I'm trying to figure out if i can offer Bikram style yoga classes at a new northern California Yoga studio. I fully intend to hire only instructors who are certified at Bikram's college in Los Angeles to teach the class, and I won't hire people who 'alter' his method. I like his class, take it regularly and wish to offer it. However, the studio also offers other styles of yoga, and it does not wish to be put under the umbrella of Bikrams franchise. Is there any way of finding out if this is legal? Or at this point do I simply have to decide to take my chances or not?

From what I've read, it seems like I can or should be able to, but that it hasn't really been decided by the courts yet. Obviously I'm not a lawyer, but I am also worried about being sued by someone with a millions and millions of dollars with the resources to put me out of business....

Any advice is greatly appreciated....

Thanks....

dreamkacher said...

Dear Anonymous,
While I have never taken a Bikram yoga class, I have done yoga in saunas for quite some time. I do this because it is INTENSE!
That is the main appeal of sauna yoga.
While someone here mentioned that Bikram advertises that his yoga stimulates all the muscles in a prefered progression [No doubt recomended by 4 out of 5 therapists!], The different body types of Ayuvedic philosophy prescribe different movements specific to each "doshic" type.
How then can Bikram claim to have THE one recomended for all?
While we would all like to believe that our form of yoga is the best yoga, no form is the best for all.
It is advertising hype.
While it may be popular, his sequence can easily be altered by any yogi who understands the flow of prana through the nadis. Which by the way, is the REAL purpose of yoga, but that is another long posting.
As for me I have developed my own yoga [Thank you very much!] which is my own combination of Tantric Kriya flows in Chakra, Kundalini, and Vajra yoga!
Put that in your sauna and smoke it!
I have no doubt that if my yoga met his yoga in a steamy sauna, my yoga would kick his yoga's ass!
email me for more info:
dreamkacher@gmail.com

Yoga Enthusiast said...

Thank you for the great article! I've been taking Birkam's Yoga classes for 6 months now and it is the greatest exercise I ever had. But I had no idea the "Birkam style" was taken to the court... Thank you again!

Anonymous said...

Well, I took Bikram yoga years ago and was never so sorry. I injured my lower leg while in the ski position. Basically my fibula bone came out of place. To add insult to injury, when I presented this information to the instructor after the class was over, she blamed it on me, saying my alignment wasn't right. Well the ski position itself is a stressful one and does not employ a centered alignment of the hips, knees or ankles, but I diverge. Doesn't Bikram method include corrections by the teachers to prevent student's injuring themselves?

So now, 10 years after, my weight bearing exercise is limited by pain and fear of further injury. Maybe this Chourdory fellow could pay for me to have physical therapy...

JoeyB said...

No yoga should be copyright work. Yoga is an exercise that induces a spiritual connection. The Bikram series is theraupatic vs. other forms which are good at moving breath and generating heat.

John B.
www.theashramyoga.com

opensourcehotyoga said...

"On October 24, 2002, he filed a supplementary registration to the 1979 one, TX 5-624-003, listing amplified information of "compilation of exercises." There was correspondence over this that I am dying to see and will as soon as possible."

Did you ever find that correspondence and, if so, could you post or comment? The issue is coming up again now that Bikram distributed his Franchise Disclosure Document.

William Patry said...

I had it at one point, but don't now. You can get it from the Copyright Office. Call up the certifications and documents section and ask for a copy, or failing that the General Counsel's office.